Visa Lawyer Blog
This informative article is provided by Attoney Ekaterina Powell from our office. In light of a recent AAO decision of September 4, 2013, that reviewed and overturned the finding of USCIS that the beneficiary was not qualified for the H-1B position, we have decided to revisit the issues associated with H-1B petitions based on the beneficiary’s work experience and provide explanations on how you can still qualify for H-1B even if you do not have a degree.
Despite USCIS’ restrictive interpretation of the regulations, it is still quite possible to obtain H-1B petition even if you do not possess baccalaureate-level education or if you have a degree in a field that is unrelated to the offered H-1B position.
To help our readers better understand the trends in USCIS adjudication, the author will first point out the regulations pertaining to H-1B petitions based on the beneficiary’s work experience.
The law states that in absence of a U.S. or the foreign equivalent degree, in order to qualify for H-1B position, the beneficiary can show education, specialized training, and/or progressively responsible experience that is: (1) equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and (2) the beneficiary has to show recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. See 8 CFR 214.2(h)(4)(iii)(C)(4).
So, what do you have to present to qualify under this rule?
(1) Proving Equivalence to U.S. Bachelor’s Degree in the Specialty
First of all, you have to show that your work experience or the combination of your education and work experience is equivalent to completion of a U.S. bachelor’s degree in a related field.
In other words, you will need to establish that you have achieved a level of knowledge and competence in the occupation that is equal to the level of knowledge associated with completion of a U.S. bachelor’s degree in the field.
How do you do that? There are several ways to show equivalency. You have to show at least one of the following: (a) an evaluation by a college official authorized to grant credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit; (b) an evaluation of education by a credentials evaluations service which specializes in evaluating foreign educational credentials (*NOTE: while this method is mentioned, it refers to evaluation of education only and cannot be used to evaluate work experience); (c) the results of college-level equivalency examinations or special credit programs; (c) certification or registration from a nationally recognized professional association for the specialty that is known to grant certification or registration to persons in the occupational specialty. See 8 C.F.R. 214.2 (h)(4)(iii)(D).
While the law states that one of the ways to show equivalency is an independent determination of USCIS that a baccalaureate level of knowledge has been achieved through work experience or a combination of work experience and education (that falls short of a bachelor’s degree or is a bachelor’s degree in an unrelated field), the author of this article does not find it prudent to rely on USCIS to determine equivalency as USCIS is reluctant to grant its own equivalency determination in absence of proof for one of the other methods.
Practically speaking, we have found that among all the methods available the most widely used way to show equivalency is to obtain an evaluation by a college official authorized to grant credit for training and work experience, also known as experiential credits.
A number of universities nowadays have formal programs for granting college level credit for work experience that employ professors on staff in charge of evaluating candidates’ work experience to determine equivalency to a U.S. bachelor’s degree in a specialty occupation. Our office has had quite a lot of experience dealing with the professors in a variety of fields who evaluate the H-1B beneficiary’s credentials to determine equivalency to a U.S. bachelor’s degree in a particular field.
The evaluators use the USCIS-established “three-for-one” rule to determine equivalency. Under this rule, three years of specialized work experience can be substituted for each year of college-level education that the beneficiary lacks. Thus, if you do not have any college-level education, then you will need to show 12 years of relevant work experience.
Verification of Work Experience
In order to verify work experience, it is prudent to submit letters from former employers to the evaluators and then to USCIS. The letters should contain a reference as to whether your peers, subordinates, or supervisors held the degrees in the specialty occupation.
Often times, some of the former employers may no longer be in business. In that case, an affidavit from a coworker or a supervisor is usually sufficient.
Letters from former employers play a dual role: first of all, they are used to substantiate work experience, and, secondly, they can be used to prove the second prong of the test – recognition of expertise.
Although college officials may be able to grant an equivalency evaluation in absence of the letters of employment documenting all of your experience, USCIS often times discounts evaluations done in such way stating that it is not clear how the college official has arrived at his/her conclusions.
Despite this trend of USCIS casting doubt on the evaluations not based on letters of employment, there is some wiggle room for an argument since the regulations do not specifically provide that the beneficiary has to provide detailed letters of employment to prove all work experience.
(2) Proving Recognition of Expertise in the Specialty
In addition to presenting an evaluation from a college official showing work experience equivalency to a U.S. bachelor’s degree, you will need to prove that you have attained “recognition of expertise in the specialty.”
What the regulations mean is that you need to prove that you have acquired the requisite level of knowledge through progressively responsible and relevant experience.
How do you show it? The law provides for a number of ways to prove recognition of expertise in the specialty occupation. You should submit evidence under at least 1 of the 5 criteria listed in
8 CFR 214.2(h)(4)(iii)(D)(5)(i)-(v): (i) Recognition of expertise by at least two recognized authorities in the same specialty occupation; (ii) Membership in a recognized association or society in the specialty occupation; (iii) Published material by or about the alien in the professional publications, trade journals, books, or major newspapers; (iv) Licensure or registration to practice the specialty occupation in a foreign country; or (v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.
The most common way of proving recognition of expertise in the specialty is presenting sworn letters from your former employers explaining the details of your employment and your abilities in factual terms as referenced in the previous section.
“Recognized authority” is defined as “a person or an organization with expertise in a particular field, special skills or knowledge in that field, and the expertise to render the type of opinion requested.” See 8 CFR 214.2(h)(4)(ii). Thus, given the definition, those letters from former employers can serve as opinions by the recognized authorities in the specialty.
Another way of proving expertise in the specialty is by providing two opinions from references that can be classified as “recognized authorities” who know of your work and your achievements but who have not worked directly with you.
A college official who grants the equivalency evaluation may also serve as a recognized authority, but, in this case, another official’s opinion should be also be secured.
Example of AAO Decision Approving H-1B Petition Based On Beneficiary’s Work Experience
Returning to the AAO decision referenced in the beginning of this article, the author would like to discuss an example of an H-1B petition based on work experience to point out the interesting issues that were discussed in the counsel’s brief on appeal and the trends in adjudication of work experience H-1Bs by USCIS.
The H-1B petition was submitted on behalf of the beneficiary with a 3-year foreign education in the field of Criminology and over 3 years of work experience in the field of Criminology. The beneficiary was previously granted H-1B in 2009 and the Service previously accepted his credentials as equivalent to a U.S. bachelor’s in Criminology. In support of H-1B petition filed in 2012, the petitioner has provided two evaluations of the beneficiary’s credentials, the beneficiary’s transcripts from a 3-year educational program, various certificates of completion of relevant training, letters of support proving recognition in the field, and the beneficiary’s resume. It is not clear whether letters from employers were submitted with the filing to verify all of the work experience of the beneficiary.
USCIS initially denied the case in January 2013 by stating that the petitioner has not provided sufficient evidence to show that the beneficiary qualifies to perform the job duties of the proffered position.
In the denial decision, USCIS focuses on the evaluation performed by a foreign educational credentials evaluator, Professor X on behalf of University Y, submitted in support of the H-1B petition to prove that the beneficiary had a combination of education and work experience equivalent to a U.S. bachelor’s degree in Criminology. Specifically, USCIS states that foreign credentials evaluators may only evaluate foreign education but may not evaluate an individual’s work experience per the regulations.
USCIS also notes that the petitioner submitted a second evaluation of experience from a private educational evaluation service performed by a consultant who claims to have authority to grant college-level credit for work experience, however, such evaluation cannot be accepted for the same reason as the evaluation above – a credentials evaluation service may not evaluate work experience.
Furthermore, USCIS states that both evaluators have not proved that they are qualified to grant equivalency evaluations in the particular field of Criminology. Both of the evaluators hold degrees in Education and other liberal arts degrees, i.e. the fields unrelated to the position offered.
USCIS goes further on by discussing the possibility of its independent determination of equivalency. The petitioner provided the beneficiary’s resume to prove work experience in the field and both of the evaluators have relied on that resume in their assessment. USCIS points out that a resume alone is insufficient to satisfy equivalency of a baccalaureate level of education based on experience. Without supplemental information, as USCIS states, it is impossible to determine how the evaluator reached the conclusion about equivalency of work experience.
In addition, USCIS states that there is no evidence to establish the beneficiary’s recognition of expertise since the evaluations presented cannot be considered evaluations performed by the recognized authorities.
The AAO decision is remarkable as it accepts the arguments presented by the counsel on appeal rebutting the agency’s conclusions. It is unclear at this point whether USCIS will be more lenient in its adjudication of work experience H-1B petitions following the trend of the AAO decision. Regardless, we find it useful to bring to your attention how work experience equivalency issues were explained on appeal and resulted in the approval of H-1B petition.
The counsel on appeal focused on two major points: 1) arguing that the evaluations are credible and satisfy all the regulatory requirements and that 2) USCIS has already made a determination that the combination of the beneficiary’s work experience and education is equivalent to a U.S. bachelor’s degree because it approved the H-1B petition on behalf of the same beneficiary in 2009.
1. The evaluations satisfy the regulatory requirements
The first argument focused on the evaluations themselves and how they satisfy the requirements. The counsel insists that both evaluators have authority to grant college credit for work experience on behalf of the universities and thus are legitimate evaluations done in accordance with 8 C.F.R. 214.2(h)(4)(iii)(D). The counsel disagrees with USCIS’ decision that found that the evaluators did not have authority to perform evaluations because they were associated with the credentials evaluation services and because they possessed degrees in other fields, and thus were not qualified to render opinions as to equivalency of work experience to a bachelor’s in Criminology. The counsel points out USCIS’ own guidelines for adjudication of such petitions in Adjudicator’s Field Manual (“AFM”).
Specifically, section 31.3(g) of AFM states that “the official must be formally involved with the college or university’s official program for granting credit based on training and/or experience to have the required authority and expertise to make such evaluations… Any such evaluation should be given considerable weight in determining eligibility.”
Thus, the AFM itself guides the adjudicators that the field of training of the evaluator is irrelevant and that the evaluator shall be considered qualified if he/she is authorized by the university to grant credit for work experience.
In addition to the actual evaluations, the petitioner has provided corroborating statements from other university officials confirming that the evaluators have authority to grant credit in any of the fields. The counsel then explained that USCIS erred in discarding the evaluations since the evaluators were both qualified to render their opinions.
In this particular H-1B case, the evaluations were used to determine equivalency of work experience, but they were not used to establish recognition of expertise. In support of the beneficiary’s recognition of expertise, the petitioner has provided other industry experts’ letters documenting the beneficiary’s achievements.
As a practical matter, it is still recommended to find evaluators with qualifications in the same occupation as the beneficiary because then, in absence of letters from employers or other references proving recognition of expertise, these evaluations could also serve as opinions from recognized authorities in the field. The regulations are clear that the recognized authorities should be qualified in the same specialty occupation, thus evaluations from experts in other fields will not be accepted under this criterion.
2. By approving an H-1B petition for the beneficiary in 2009, the Service has already accepted the beneficiary’s credentials as equivalent to a U.S. bachelor’s degree in Criminology
The counsel points out that since Vermont Service Center approved the H-1B petition on behalf of the beneficiary back in 2009, USCIS has already accepted the beneficiary’s credentials as equivalent to a bachelor’s in Criminology and, thus, it is abuse of the agency’s discretion to make a finding of equivalency in one filing and then contradict its finding in another case.
Since the counsel’s argument was based on two different points, it is not clear which of the points the AAO found more convincing in approving the petition. Despite this favorable outcome on appeal, it is still prudent to try and document all work experience of the individual by providing letters from former employers or similar evidence to increase the chances of H-1B approval.
The AAO case was provided to explain the issues that come up during adjudication of H-1B petitions based on work experience. Despite certain difficulties associated with filing of such H-1B petitions as described above, it is still quite possible to obtain approval of H-1B petition with the help of an experienced immigration attorney if you have sufficient qualifying work experience. Our office has filed many successful H-1B petitions based on work experience in lieu of formal education.
If you believe that your work experience may qualify you for H-1B position, please do not hesitate to contact our office for further guidance.